A QC representing Northern Isles MP Alistair Carmichael has called on the Election Court to dismiss a legal challenge to his re-election back in May.
At a hearing at the Court of Session in Edinburgh – the first time the Election Court has convened in half a century – four of his Orcadian constituents were challenging the election result.
Carmichael was re-elected with a massively reduced majority of 817 votes over his nearest challenger, the SNP’s Danus Skene.
Prior to the election the MP lied about his involvement in the leaking of a memo claiming Scottish first minister Nicola Sturgeon had told the French ambassador she would prefer David Cameron to win the UK election. Both Sturgeon and the ambassador strenuously deny she had made such remarks.
Shortly after the election, a Cabinet Office investigation revealed that Carmichael had himself had authorised the leak via his special advisor, Euan Roddin. The petitioners claim he lied in order to improve his own re-election prospects.
But on Monday morning – with the proceedings being broadcast live by STV – his lawyer, QC Roddy Dunlop, said the petition was “irrelevant” and “bound to fail”.
The MP was not in court, with a Liberal Democrat spokesman saying he had instead chosen to continue with normal parliamentary business. The House of Commons was debating the refugee crisis on Monday afternoon.
The spokesman said: “The decision not to be in court was taken on advice from solicitors and counsel. The hearing before the Election Court is dealing with three short questions in law. It is normal for parties not to be present while such legal questions are discussed.”
Judge Lady Paton made clear at the outset that the court would be focusing on the legal debate surrounding Section 106 of the 1983 Representation of the People Act. Under the act, making a false statement about the character and conduct of an election candidate is a criminal offence.
With most of the basic facts in the case accepted by both sides, proceedings consisted of a rather dry legal examination of how the act ought to be applied.
Dunlop acknowledged that his client’s claim prior to the election that he was unaware of the source of the leak was “not correct”.
He called for a “strict interpretation” of the 1983 act and said Carmichael’s statement could not be both personal and political.
“In my submission to court it is as clear as can be that what was said related to political conduct,” Dunlop said.
“The statutory provisions were introduced for clear and good reason: to prevent the traducing of private character for political gain. They were not introduced to allow disappointed electors to pour over every utterance of an opponent in an attempt to unseat him.”
Dunlop went on to suggest that, were the petition upheld, “during elections politicians would be strapped to a lie detector”. In response, Lord Matthews – hearing the case alongside Lady Paton – asked: “Is that a bad thing?”
Shortly after lunch, QC Jonathan Mitchell began setting out the petitioners’ case. The four constituents raised £88,000 through a crowd funding appeal to cover the legal costs.
QC Mitchell said the statements Carmichael made to Channel 4 News and the Daily Record were not in dispute. The MP was not disputing that they were statements of fact that were false.
“He doesn’t admit the word ‘false’ – the euphemism was ‘a mis-statement of awareness’ – but he has described them elsewhere as ‘dishonest’ and ‘untruthful’.”
While the individual in question – Sturgeon – was not standing for election, QC Mitchell argued that Carmichael made the statements in an attempt to ensure his own return as an MP – and by extension the potential return of any other candidate in Orkney and Shetland.
He said that, under section 106 of the Representation of the People Act, Carmichael was arguing he is “not ‘a person’ under the meaning of the act”.
The hearing is due to resume at 10.30am on Tuesday.
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